Alicia Cordova v. Carolyn W Colvin

Filing 19

MEMORANDUM AND OPINION by Magistrate Judge Victor B. KentonThis Memorandum Opinion will constitute the Courts findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed. The Complaint will be dismissed with prejudice. (rh)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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ALICIA CORDOVA,

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Plaintiff,
v.

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CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,

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Defendant.

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No. CV 13-04156-VBK
MEMORANDUM OPINION
AND ORDER
(Social Security Case)

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This matter is before the Court for review of the decision by the

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Commissioner of Social Security denying Plaintiff’s application for

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disability benefits.

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consented that the case may be handled by the Magistrate Judge.

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action arises under 42 U.S.C. §405(g), which authorizes the Court to

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enter judgment upon the pleadings and transcript of the record before

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the Commissioner.

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(“JS”), and the Commissioner has filed the certified Administrative

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Record (“AR”).

Pursuant to 28 U.S.C. §636(c), the parties have
The

The parties have filed the Joint Stipulation

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Plaintiff raises the following issues:

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1.

Whether

the Administrative Law Judge (“ALJ”) properly

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determined that Plaintiff could perform her past relevant

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work.

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(JS at 4.)

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This Memorandum Opinion will constitute the Court’s findings of

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fact and conclusions of law.

After reviewing the matter, the Court

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concludes that the decision of the Commissioner must be affirmed.

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I

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THE ALJ PROPERLY DETERMINED THAT PLAINTIFF

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CAN PERFORM HER PAST RELEVANT WORK

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At the administrative hearing (AR 43-63), the ALJ utilized the

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assistance of a vocational expert (“VE”). The VE identified one of

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Plaintiff’s

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transcriber, [DOT] 203.582-058, sedentary, skilled, SVP of 5.” (AR

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51.)

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sequential

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performing the PRW. (AR 29.) Plaintiff asserts that this was an

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erroneous finding because the ALJ relied upon the VE’s testimony which

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failed to substantiate an asserted discrepancy between Plaintiff’s

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residual functional capacity (“RFC”) and the demands of the PRW.

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Specifically, Plaintiff asserts that while Plaintiff’s RFC provides,

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in part, that she can only “occasionally” push/pull with her lower

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extremities, the Dictionary of Occupational Titles (“DOT”) definition

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of her PRW requires more. For the following reasons, the Court

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disagrees.

In

jobs

his

(Past

Decision,

evaluation

Relevant

the

ALJ

Work,

or

determined

procedure

that

“PRW”)

at

Step

Plaintiff

was

as

Four

“medical

of

capable

the
of

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The law is clear that if there is such a discrepancy, it must be

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fully explained in the ALJ’s Decision. See Massachi v. Astrue, 486
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F.3d 1149, 1152-1153 (9th Cir. 2007).

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Here, the VE found that Plaintiff’s PRW does not require more

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than occasional ability to use her lower extremities to push/pull. (AR

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50-53, 59-61.) Plaintiff asserts that because her PRW requires that

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she operate a transcribing machine, she interprets that “the DOT

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describes constant use of the fingers to type.” (JS at 7, citing

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Exhibit [“Ex.”] 1 at p. 3.) The crux of Plaintiff’s argument is that,

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“This constant pushing of a foot control to pause the

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machine

while

typing

is

inconsistent

with

the

ALJ’s

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limitation of [Plaintiff] from more than occasional pushing

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with the lower extremities.”

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(JS at 8.)

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Plaintiff’s argument fails for several reasons. First, there

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simply is no deviation between the determined RFC, which Plaintiff

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does not dispute, and the DOT’s description of the exertional demands

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of her PRW. Specifically, as noted, Plaintiff’s PRW requires “exerting

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up to 10 pounds of force occasionally.” Further, the DOT description

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itself defines “occasionally” as “activity or condition exists up to

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1/3 of the time.” (Ex. A at 1.) The Commissioner’s own regulations

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define “occasionally” as “occurring very little up to one-third of the

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time.” (See SSR 83-10.)

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Further, as the Commissioner correctly notes, Plaintiff’s PRW

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requires

a

sedentary

exertional

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regulations classify a job which requires pushing or pulling of leg

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controls as light work. See 20 C.F.R. § 404.1576(b). (Light work

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encompasses jobs that require “very little” lifting but “some pushing

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or pulling of arm or leg controls.”) Thus, if in fact Plaintiff’s PRW
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level.

The

Commissioner’s

own

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required more than occasional pushing or pulling with the lower

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extremities, it would have been classified as light instead of

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sedentary work.

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For the above reasons, there was no actual or even apparent

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conflict between the requirements of the DOT and the testimony of the

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VE that Plaintiff could perform this work. The ALJ was therefore

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entitled to rely upon the VE’s testimony. See Bayliss v. Barnhart, 427

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F.3d 1211, 1218 (9th Cir. 2005).

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Finally, Plaintiff herself asserted that in doing her job, she

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never had any difficulty with her lower extremities. Her testimony,

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rather, was that she could not perform her job because sitting caused

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her back pain. (AR 53-54.) As the Commissioner notes, Plaintiff’s own

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description of her PRW is “highly probative” of the demands of that

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job. See JS at 15, citing Matthews v. Shalala, 10 F.3d 678, 681 (9th

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Cir. 1993); see also SSR 82-62.

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For the foregoing reasons, the Court finds no error with regard

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to Plaintiff’s sole issue, and therefore, the decision of the ALJ will

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be affirmed.

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The Complaint will be dismissed with prejudice.

IT IS SO ORDERED.

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DATED: March 20, 2014

/s/
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE

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